Dileep v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934 CRL.A.No. 61 of 2012 (C) ------------------------ (SC.No.863/2008 OF THE COURT OF ADDITIONAL SESSIONS JUDGE-I,TRIVANDRUM) APPELLANT(S): ------------ DILEEP CNO.6619 CENTRAL PRISON TRIVANDRM BY ADV. SREEJITH .S. NAIR [STATE BRIEF] RESPONDENT: -------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR BY PUBLIC PROSECUTOR SMT. LALIZA T.Y. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 2506-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN, J.** **---------------------------------------Crl.A No.61 of 2012 ----------------------------------------** Dated the 25th day of June, 2012 ## **JUDGMENT** The sole accused in S.C.No.863 of 2008 of the court of the Additional Sessions Judge-I, Thiruvananthapuram is the appellant herein who challenges his conviction and sentence imposed vide judgment dated 30.9.2011 in the above Sessions Case. 2. The case of the prosecution is that, on 26.11.2007 at about 7.00 a.m. , PW5, the then Sub Inspector of Police attached to Contonment Police Station, Thiruvananthapuram received information that, a native of Chengal choola, wearing black and light green shirt and gray coloured pants with a plastic kit in his hand, was standing at Model School Junction. Thus on the arrival of of PW5 at the spot, he had seen the person appearing with the description that contained in the information he received and, on inspecting the plastic kit found in the possession of the accused, the content was realised as Ganja and thereby the accused has CRL.A.NO.61/12 ## **:-2-:** committed the offence punishable under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances (Amendment) Act 1998. Accordingly, crime No. 340/2007 of Contonment Police Station was registered and on completion of the investigation, a report was filed based upon which cognizance was taken and S.C.No.863 of 2008 was instituted. 3. When the accused was produced, after hearing the prosecution as well as the accused, who defended by an Advocate appointed as crown counsel, a formal charge was framed against the accused for the offence punishable under section 20(b)( ii) (B) of the Narcotic Drugs and Psychotropic Substances (Amendment) Act 1998 (herein after referred for short, 'the NDPS Act' only). When the said charge was read over and explained to the accused, he denied the same and pleaded not guilty. Therefore, the trial was proceeded further during which the prosecution has examined PWs 1 to 7 and produced and marked Exts.P1 to P15. Four items were marked as material objects. No evidence, either oral or documentary, produced from the side of the defence. The trial court, towards the conclusion of the trial, found that, the CRL.A.NO.61/12 ## **:-3-:** accused was found in possession of ganja and the possession was in violation of the provisions of the NDPS Act. It is also found that the possession of the narcotic drug was for the purpose of sale. Thus according to the learned Sessions Judge, the prosecution has successfully proved that the accused was possessing narcotic drug for the purpose of sale. On such finding, the accused is convicted for the offence punishable under section 20(b)(ii) (B) of the NDPS Act and on such conviction he is sentenced to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs.25,000/- and in default, he is directed to undergo simple imprisonment for a further period of one year. Set off is allowed for the period from 26.11.2007 to 19.11.2008. It is the above findings and order of conviction and sentence challenged in this appeal. As the appellant is undergoing imprisonment in pursuant of the above judgment, he preferred this appeal from the jail and on receiving such jail appeal, as ordered by this Court, Advocate Sri Sreejith S.Nair is appointed from the panel of State Brief to prosecute the appeal on behalf of the appellant. Thus, I have heard Sri Sreejith S.Nair, the counsel for the CRL.A.NO.61/12 ## **:-4-:** appellant and Smt. Laliza T.Y., the learned Public Prosecutor for the State. 4. Among the prosecution witnesses examined, PWs 1 and 2 are independent witnesses who are attestors to Ext.P1 mahazar. But when they were examined, they turned against the prosecution. PW3 and PW5 are the prosecution witnesses who detected the crime. PW4 is the Scientific Assistant of Forensic Sicence Laboratory at Trivandrum, through whom, the prosecution has marked Ext.P8 chemical analysis report. 5. PWs 3 and PW5 are the then Police Constable and Sub Inspector of Police respectively, attached to the Contonment Police Station. When these witnesses were examined, they have deposed strictly in accordance with the prosecution allegation. PW3 is the Police Constable who accompanied PW5 at the time of detection and when he was examined, he had deposed about his role and about the steps taken by PW5 towards the search and seizure of the contraband article. According to PW5, he received an information at about 7 am on 26.11.2007 that, a native of CRL.A.NO.61/12 ## **:-5-:** Chengal Choola wearing black and light green shirt and gray coloured pants with a plastic kit in his hand, was standing at Model School Junction. According to PW5, on getting such information, he along with PW3 and CW4 went to the place of occurrence and when they reached there, the accused tried to escape but he was intercepted and PW5 ascertained the name and address of the accused and on inspection inside the plastic kit, which was found in possession of the accused, PW5 could find ganja kept covered by a newspaper. According to PW5, he had convinced that the accused was possessing ganja for sale and therefore PW5 decided to conduct body search of the accused and he asked the accused whether he wanted the assistance of a gazetted officer or a Magistrate to search his body. When the accused opted the presence of a gazetted officer, according to PW5, he gave information to the then C.I of Contonment Police station, who was examined as PW7 and accordingly, by 7.30 a.m, PW7 came to the spot. It is the further version of PW5 that, as instructed by PW7, he had conducted body search of the accused and nothing was found during such search. Then PW5 further CRL.A.NO.61/12 ## **:-6-:** stated about the details of the inspection made by him with respect to the plastic kit and also stated about drawing of samples from the ganja out of the total quantity of 1200 grams . He had also deposed about the taking of the samples, the remnants and also assigning numbers to the packets etc. According to PW5, he had prepared Ext.P1 mahazar for the search and seizure of the ganja and also drawing of samples etc. According to PW5, the seizure was effected in the presence of the attestors, PWs 1 and 2, and thereafter the accused was arrested in accordance with law. Thereafter, according to PW5, he reached in the Contonment police station along with the accused, the contraband article and the material objects and the other documents and he had registered Ext.P9 FIR against the accused at about 10.30 a.m on the above date. Ext.P11 arrest memo, and Ext.P12 inspection memo were marked through PW5. He had also deposed before the court that the material objects were sent to the court as per Ext.P10 property list. He had also deposed that, as per Ext.P14 forwarding note, requisition was sent to the court to send the samples to the Forensic Science CRL.A.NO.61/12 ## **:-7-:** Laboratory for chemical examination and report. Ext.P15 report, sent by PW5 to PW7 in terms of section 57 of the NDPS Act, was also marked. When PW5 was examined, Ext.P2 Slip on S1 packet, Ext.P7 slip on S2 packet and Ext.P4 slip in S4 packets were marked. Besides the above documents, during the examination of PW5, Exts.P5 and P6, which are the contradiction statement of PWs 1 and 2 respectively, were marked. Ext.P13 remand application was also marked through PW5. During the examination of PW5, he had also identified MOs 1 to MO4 which are respectively 1100 grams, 100 grms, a plastic cover and a jute twain respectively. When PW3 was examined, he had also deposed similar to the deposition of PW5. PW6 is the officer who completed the investigation and laid the charge. PW7 is the then Circle Inspector of Police, Contonment Police Station who was brought at the spot at the instance of PW5. PW7 had also deposed fully in terms of the prosecution allegation. These are the main evidence and materials referred to and relied on by the learned Judge of the trial court in support of his finding and for convicting the appellant. CRL.A.NO.61/12 ## **:-8-:** 6. I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the Public Prosecutor. I have perused the judgment and also scrutinized the evidence and materials on record. 7. The learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to comply with the mandatory provisions contained in the statute and therefore, the investigation and the trial are vitiated. It is the specific submission of the learned counsel that Section 50 of the NDPS Act is the protection guaranteed by the Act in favour of the accused who involved in the crime and in the present case, PW5, the detecting officer miserably failed to follow section 50. According to the learned counsel, the learned Judge of the trial court miserably failed to consider the failure of the prosecution in following the above said statutory mandate. According to the learned counsel, the search and seizure was effected in flagrant violation of Section 50. It is the further submission of the learned counsel that though PW7 is the gazetted officer, he was also working as Circle Inspector of Police at that time, and therefore, it CRL.A.NO.61/12 ## **:-9-:** cannot be said that PW5 has complied with the direction contained in Section 50 of the Act. Therefore, the Counsel submits that the findings and conviction recorded against the appellant are liable to be set aside. In the alternative, the learned counsel further submitted that the sentence imposed against the appellant is exorbitant and also disproportionate to the allegation raised against the appellant. Therefore he prayed for a lenient approach in the matter of sentence. The learned counsel for the appellant placed reliance upon the following decisions **Narcotics Central Bureau v. Sukh Dev Raj Sodhi** (2011 KHC 4519) and **State v. Dilbagh (** 2004 (13) SCC 99). 8. On the other hand, the learned Public Prosecutor submitted that, having regard to the facts and circumstances involved in this case, though Section 50 of the NDPS Act is not attracted, PW5 has complied with all the safeguards provided therein. According to the learned Public prosecutor, the evidence of PW5 and PW3 and the documentary evidence shows that the accused was convinced about his right under section 50 of the NDPS Act and when two options given to CRL.A.NO.61/12 ## **:-10-:** him, he preferred the presence of a gazetted officer for his search and thus PW5 brought PW7 at the spot . Thus according to the learned Public Prosecutor, there is no failure on the part of the prosecution agency in following any of the mandatory provisions contained in the NDPS Act and therefore, no interference is warranted with respect to the finding and the conviction recorded by the learned Judge of the trial court. 9. In the light of the arguments advanced by the counsel for the appellant and the learned Public prosecutor, and in the light of the evidence and materials involved in the case, the question to be considered is whether the trial court is correct in its finding and convicting the appellant for the offence punishable under section 20(b)(ii)(B) of the NDPS Act. 10. The crux of the prosecution allegation is that, on getting information about the the presence of the accused at the place of occurrence, PW5 proceeded to there and when he inspected the kit which was found in the possession of the accused, PW5 detected 1200 grams of ganja. The only point raised by the learned counsel for the appellant is that the CRL.A.NO.61/12 ## **:-11-:** prosecution has not complied with the mandatory provisions contained in Section 50 of the NDPS Act. No other challenge is raised against the findings of the court below. According to the learned counsel for the appellant, PWs 1 and 2, the independent witnesses, cited to prove the seizure and the arrest of the accused, turned hostile and therefore, the only evidence that available are the evidence of PW5 and PW3 who are police personnels and, therefore, according to the learned counsel, the claim of PWs 5 and 3 regarding the compliance of Section 50 cannot be believed. The learned Public Prosecutor submitted that, as there is no seizure from the personal search of the accused, Section 50 is not attracted. On examination of the above rival contentions, in the light of the evidence and materials available on record, it can be seen that, compliance of Section 50 is not required in the present case since the contraband article is not seized as part of the personal search of the accused. In the light of the decision of the Supreme court in **State of Punjab v.Beldev Singh (1999) 6 SCC 172),** the evidence and materials collected rendered as unacceptable when the CRL.A.NO.61/12 ## **:-12-:** search is conducted in violation of any statutory provisions or when the search itself as illegal. In the present case, as I indicated earlier, the contraband article in the present case is not seized from the search of the person of the accused. But it can be seen that as per the evidence of the prosecution witnesses, the contraband article was seized from the bag which was held by the accused in his hand at the time when PW5 intercepted him. Therefore, the contention of the learned counsel for the appellant on the basis of section 50 of the NDPS Act is not attracted in the present case. Though PWs 1 and 2 turned hostile, the evidence of the prosecution is in tact and nothing is brought on record to discredit the version of the official witnesses including PWs 3 , 5 and 7. No other points raised with respect to the seizure and arrest of the accused. It is also clear from the evidence on record and as rightly held by the learned Judge of the trial court, the ganja was kept for the purpose of sale since the sale proceeds were seized from the possession of the accused. Therefore, I am of the view that the learned Judge of the trial court is fully justified in his finding and convicting the appellant for the CRL.A.NO.61/12 ## **:-13-:** offence punishable under section 20(b) (ii) (B) of the NDPS Act. 11. With respect to the submission of the learned counsel for leniency in the matter of sentence, I am of the view that the said submission requires positive consideration. At the time of the alleged occurrence, the accused was only at the age between 29 - 30. The prosecution has no case that the appellant is a habitual offender involved in similar offences. In the light of the above mitigating circumstances, according to me, the sentence imposed against the appellant requires modification. Having regard to the facts and circumstances involved in this case, I am of the view that the sentence imposed against the appellant can be modified and reduced and fixed as three years rigorous imprisonment and while confirming the sentence of fine, the default sentence can be reduced into six months simple imprisonment. Thus in modification of the sentence imposed by the trial court, the appellant is sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.25,000/- and, in default, he is directed to undergo simple CRL.A.NO.61/12 ## **:-14-:** imprisonment for a period of six months under section 20(b) (ii)(B) of the Act. Set off is allowed under section 428 Cr.P.C with respect to the period he had undergone as under trial prisoner. In the result, this appeal is dismissed confirming the conviction of the appellant under section 20(b)(ii)(B) of the NDPS Act but subject to the modification with respect to the sentence to the extent indicated above. **V.K.MOHANAN, JUDGE** kvm/- ## CRL.A.NO.61/12 **:-15-:**